Andikar v Siro [2008] VUCA 1; Civil Appeal Case 02 of 2008 (30 April 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 02 of 2008

BETWEEN:

JEAN BAPTISTE ANDIKAR
SIMON ANDIMELE
ANDFOK VARALE
Appellants

AND:

TOM SIRO
Respondent

Coram: Hon. Chief Justice Vincent Lunabeck
Hon. Justice Bruce Robertson
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsels: Mr. Bill Bani for the Appellants
Mr. Saling Stephens for the Respondent

Date of Hearing: 29 April 2008
Date of Decision: 30 April 2008

REASONS FOR JUDGMENT

On 14 February 2008 a judge of the Supreme Court gave judgment in favour of Tom Siro in an action for trespass by him against the present Appellants Jean Baptiste Andikar, Simon Andimele and Andfok Varale (who we will call the three Andikar parties) for VT4,900,000.00

The Island Court of Santo/Malo on 30 August 1993 found that custom ownership of Funaspef Land at Namback, Santo should be divided so that Tom Siro was to be recognized as the custom owner of the upper part of the Funaspef Land and Jean Baptiste Andikar as the custom owner of the lower part of that land towards Luganville.

Tom Siro claimed, and the trial judge found, that the three Andikar parties had trespassed on Tom Siro’s part of the Funaspef Land where there was a cave known as the Millennium Cave. Tom Siro’s claim was that the three Andikar parties had been taking tourists to the Millennium Cave since about August 2003. The trial judge awarded Tom Siro mesne profits for 13 years at VT300,000 per year and exemplary damages of VT1,000,000. The three Andikar parties said that the Millennium Cave was not on Tom Siro’s custom land but is on the boundary of Turturniu custom land and Tankar custom land. They denied other parts of Tom Siro’s claim, but did not set up any facts which they wanted to prove to contradict them. Rule 4.5 (4) (b) of the Civil Procedure Rules say that a defendant who wants to prove different facts must state what the defendant says are the important facts.

The three Andikar parties have applied to call fresh evidence on this appeal to show that Samuel Andikar had an agreement with Tom Siro of 28 August 2003 that he could take tourist groups to the Millennium Cave across Tom Siro’s land, and that Samuel Andikar (and not the three Andikar parties) had been doing that since 2003. They would have avoided their present difficulties in part if they had pleaded those facts in their defence.

Apart from the appeal seeking to call the further evidence referred to, the grounds of appeal attack certain conclusions of the trial judge because, it is argued, there was no adequate evidence to support them. Those findings are that the three Andikar parties have been operating a tourist business at the Millennium Cave since August 2003 and have been charging VT2,000 per tourist. Finally, it is said, the awards of mesne profits and exemplary damages are wrong in law.

The appeal proceeded on a common understanding of the findings about the location of the Millennium Cave. The upper part of the Funaspef land runs roughly east-west. Its boundary is defined by the Vatar River. On the northern side of the Vatar River is Tankar land over which the Andikar family claim custom rights, although that is not accepted by Tom Siro. The Millennium Cave straddles the Vatar River, so that one side of it is on Tankar land and one side of it on Funaspef land.

Up to the hearing, and since about August 2003, some person or persons from the Andikar family (it is now said to be Samuel Andikar) have been taking tourists to the Millennium Cave. They have used a path across the lower part of Funaspef land of which Jean Baptiste Andikar is the custom owner and then across the upper part of the land of which Tom Siro is the custom owner. The three Andikar parties now accept that, without the permission of Tom Siro, they would have been trespassing on his land by using that path if in fact they had done that. They say that there is an alternative access route to the Millennium Cave through the lower part of the Funaspef land, along its western border with Turturniu land and along the northern bank of the Vatar River which is on Tankar land. They have not used that route yet.

The trial judge accepted the accuracy of the plan from which the location of the Millennium Cave as described above is taken. He said it is located within Tom Siro’s part of the Funaspef land on the boundary of Funaspef land with Tankar land. That, it was agreed, was a reference to one side of the Millennium Cave (as the plan makes it clear that the cave straddles the river).

The judge then continued:

"The mouth of the Cave is only accessible from its entrance through the Claimant’s part of Funaspef Land. The Court is satisfied that the Claimant is the custom owner of the upper part of Funaspef Land on which the Millennium Cave is located. As such the Court is satisfied that the Millennium Cave is owned by the Claimant".

In our view, that reasoning contains an assumption which is not correct. The assumption is that, if access to the cave is only through Tom Siro’s custom land, then he must also have ownership of the Millennium Cave. If a river forms the boundary between two pieces of land, then unless there is a particular document which says otherwise, the boundary of each piece of land will either be at the respective edges of the river or at the centre of the river. There is a presumption at common law that each adjoining landowner owns the land under the water to its mid point: see Blount v. Layard [1891] 2 Ch 68ln. The decision of the Island Court of Santo/Malo of 30 August 1993 did not decide that the upper part of the Funaspef land extended across all the Vatar River. It simply did not consider that because it was deciding who were the custom owners of the Funaspef land. It did not address whether the boundary between the Funaspef land and the Tankar land was at each edge of the Vatar river or its middle.

As the Millennium Cave straddles the river, apparently with footing on both Funaspef land and Tankar land, it was erroneous to reason from the restricted access to it that it was owned by Tom Siro.

The question of access is a different one. If access to a site which is partly on his land is difficult to access from his land by the owner, that does not mean the person is not still the owner of that part of the site which is on his land.

We consider that the step in the trial judge’s reasoning which collapsed the 2 notions into one issue means that he then proceeded on a false premise in making his final orders. They should be set aside, and the matter remitted to the trial judge for further hearing.

In those circumstances we need to only briefly address the other grounds of appeal.

It is not necessary to decide if the proposed fresh evidence should have been admitted on the appeal. The three Andikar parties (if they remain as the defendants) may wish to amend their defence to plead that they were not the ones conducting tourist trips to the Millennium Cave but that it was Samuel Andikar.

They may plead that they were acting as his agent under the consent given by his agreement with Tom Siro of 28 August 2003; that claim, if made, may also give rise to issues as to the enforceability of that agreement as Tom Siro says he only signed it under duress. Those matters now are better left to the trial judge if they emerge from amended pleadings.

We also note that counsel for Tom Siro had some difficulty in identifying the evidence before the trial judge showing that the three Andikar parties (and not Samuel Andikar) had in fact been trespassing on his land by taking tourist groups across it to the Millennium Cave. Again, that will be a matter for the trial judge upon further hearing.

In any event, we do not think the award of damages can stand. There is an error in assuming or finding that the three Andikar parties (or anyone else) had operated tourist activities at the Millennium Cave for 13 years. The evidence indicates that tourist activities had been operated there only since about August 2003, so any claim for damages for trespass should have been limited to that period of about 4 ½ years. If the loss was VT300,000 per year, that would total VT 1,350,000. However, the evidence to support such a yearly loss is sparse. The claim for mesne profits is simply a claim for loss suffered during the period of dispossession. Counsel for Tom Siro identified only limited evidence upon which the particular claim of VT300,000 per year was quantified. It showed that over 3 days in June 2006 an average of 8 tourists each day visited the cave. That is not enough to support a finding that tourists were taken to Millennium Cave on many days each year. Nor does it make allowance for the expenses of taking those tourist there. Also, it is not clear that Tom Siro was unable to access the Millennium Cave or to operate any tourist business there himself during the period from 2003. There was no evidence of any other use to which he may have put the Millennium Cave area during that period. So the evidence at trial did not support a claim for mesne profits of the amount he claims. If the matter proceeds, further evidence may inform the assessment of any damages.

Exemplary damages may be awarded for trespass to land where the trespass is in deliberate disregard of the rights of the landowner. Even if we assume that exemplary damages are available in the more general circumstances permitted in New Zealand (see Taylor v. Beere [1982] NZCA 15; [1982] 1 NZLR 81) and Australia (see Lamb v. Cotogno (1987) 164 C.L.R.1) than in the United Kingdom (compare Rookes v. Barnard [1964] UKHL 1; [1964] AC 1129), we do not consider that the evidence was sufficient to show the three Andikar parties acted so deliberately and outrageously in relation to the rights of Tom Siro as to justify an award of such damages.

The orders of the trial judge are therefore set aside. The Court also orders that the proceeding be remitted to the trial judge for further hearing. As we noted above, his Honour’s starting point as to the geographical location of the Millennium Cave straddling the Vatar River and with one footing on the upper part of the Funaspef land was not challenged on appeal. So the case can proceed from that point. The costs of this appeal should follow the event in the action in the Supreme Court.

Finally, we draw to the parties’ attention that potential benefits of some co-operation between them. Tom Siro has not himself run a tourist business to the Millennium Cave. The activity of the Andikars (using a general description) has stopped since the judgment of 14 February 2008. That is so although Samuel Andikar says that he was the one running the business. He was not a party to the action and was not injuncted from running such a business and (he says) he has Tom Siro’s permission to take tourist across Tom Siro’s land to the cave. It is quite common for people in circumstances like the present to give permission for a tour operator to take tourists across his land to a particular site on the basis of being paid a modest portion of the fee charged to each tourist. Of course, that depends whether the land owner’s use of the land for other purposes is interfered with, but that does not seem to be the case. The parties may be able to resolve their disputes by some such arrangement.

DATED at Port Vila, this 30th day of April, 2008.

BY THE COURT

Hon. Vincent Lunabeck CJ.
Hon. Bruce Robertson J.
Hon. Hamlison Bulu J.
Hon. Christopher Tuohy J.
Hon. John Mansfield J.